The European Union creates a legal framework for imposing penalties in the event of discharges of oil and other noxious substances from ships sailing in its waters.

ACTS

Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, particularly criminal penalties, for infringements.

SUMMARY

The current legislation states that ship-source polluting discharges constitute in principle a criminal offence and according to the Directive this relates to discharges of oil or other noxious substances from vessels. Minor discharges shall not automatically be considered as offences, except where their repetition leads to a deterioration in the quality of the water, including in the case of repeated discharges.

The persons responsible for discharging polluting substances may be subject to criminal penalties, if they have acted with intent, recklessly * or with serious negligence. The act of inciting, aiding and abetting a person to discharge a polluting substance may also lead to criminal penalties.

The Directive applies to all types of vessels, irrespective of their flag. Polluting discharges are forbidden in:

the internal waters, including ports, of a European Union (EU) country;

the territorial waters of an EU country;

straits used for international navigation subject to the regime of transit passage, as laid down in the 1982 United Nations Convention on the Law of the Sea;

the exclusive economic zone (EEZ) of an EU country;

the high seas.

Exceptions

This regime does not apply to discharges from warships or other ships owned or operated by a State and used only on government non-commercial service.

Exceptions to the ban on discharges of polluting substances may be applied where human safety or that of the ship is in danger.

Legal persons

Legal persons under private law * may be subject to criminal penalties if a natural person has committed a criminal offence for their benefit. This natural person may have acted either individually or as part of an organ of the legal person. They must have a leading position within the structure of the legal person.

The legal person is also responsible for offences committed by a natural person through oversight, specifically through a lack of supervision or control.

The liability of a legal person shall not exclude criminal proceedings against the natural persons involved.

Applying penalties

The national authorities shall ensure that effective, proportionate and dissuasive penalties are applied, including for minor offences. They shall cooperate when a vessel is found guilty of illegal discharging in their area of responsibility before the vessels calls at the port of another EU country.

Background

The sinking of the Prestige in November 2002 and of the Erika in December 1999 highlighted the need to tighten the net in relation to ship-source pollution. However, accidents are not the main source of pollution: most of it is the result of deliberate discharges (tank-cleaning operations and waste oil disposal).

These rules incorporate into Community law the 1973 International Convention on the Prevention of Pollution from Ships and its 1978 Protocol (Marpol Convention 73/78). This will make it possible to harmonise application of the provisions of this convention.

These two Conventions establish a two-tier liability system built upon:

(limited) strict liability for the ship owner;

a collectively financed fund which provides supplementary compensation to victims of oil pollution damage who have not obtained full compensation.

Key terms

Reckless action: action taken with the knowledge that it is likely to result in damage.

Legal persons under private law: all legal entities, such as undertakings, with the exception of States, public bodies and international public organisations.